Torbett et al v. City of Ogden et al
MEMORANDUM DECISION AND ORDER granting 42 Motion for Summary Judgment ; finding as moot 44 Motion in Limine. Signed by Judge Bruce S. Jenkins on 10/11/2018. (las)
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2018 OCT 11 PM 3:26
U.S. DISTRICT COURT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
HAROLD MARK TORBETT (AK.A. MARK
TORTBETT) and REGINA TORTBETT,
GRANTING DEFENDANTS' MOTION
THE CITY OF OGDEN, OGDEN CITY
POLICE DEPARTMENT, CODY MARSH, Z.
MARTIN, T. WILLIAMS,
Case No. 1:16-cv-00044-BSJ
Judge Brnce S. Jenkins
Plaintiff and his wife filed this action against Defendants under 42 U.S.C. § 1983 on
April 11, 2016. On March 19, 2018, Defendants filed a motion for summary judgment, raising
qualified immunity, and a motion in limine. In turn, Plaintiff filed oppositions onApril 19, 2018,
and Defendants replied on May 8, 2018. This matter came before the court for hearing on May
18, 2018. At the hearing, the court granted Defendants' summary judgment motion as to the City
of Ogden, the Ogden City Police Department, and Officer Zachary Martin. The court took under
advisement the motion as to Officers Travis Williams and Cody Marsh. Having considered the
parties' briefs, the evidence presented, the arguments of counsel, and the relevant law, the court
now determines Defendants' summary judgment motion should be granted as to Officers
Williams and Marsh. Thus, the motion in limine is moot.
Summary judgment is appropriate if "there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter oflaw." Fed.R.Civ.P. 56(c). Since the court
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views the facts in the light most favorable to the nonmoving party, "[i]n qualified immunity
cases, this usually means adopting ... the plaintiff's version of the facts." Scott v. Harris, 550
U.S. 372, 378 (2007). However, the Supreme Court requires the nonmoving party to show a
genuine dispute to successfully survive a motion for summary judgment. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-248 (1986) ("[S]ome alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment; the requirement
is that there be no genuine issue of material fact.") (emphasis in original). Likewise, the Tenth
Circuit recently admonished: Although "courts ordinarily accept the plaintiffs version of the
facts" in a qualified immunity analysis at summary judgment, the plaintiff's version "must find
support in the record." A.M v. Holmes, 830 F.3d 1123, 1136 (10th Cir. 2016). Ultimately, ifthe
nonmoving party fails to properly address the moving party's assertion of fact as required by
Rule 56(c), the court may "consider the fact undisputed for the purposes of the motion."
Fed.R.Civ.P. 56( e)(2).
The court considers the following facts undisputed. All facts and reasonable inferences
have been construed in the light most favorable to Plaintiff, the nonmoving party, to the extent
that the facts are supported in the record.
A. Plaintiff Enters the Ogden City Police Station
In the afternoon on February 8, 2016, Plaintiff was driving through Utah on a crosscountry road trip when he began feeling ill-weak, dizzy, and unfit to drive on. 1 He did not
know the cause but thought it could be food poisoning. 2 After parking his car, he entered the
of Harold Mark Torbett 62:21-25, 63:1--12.
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Ogden City Police Department to seek medical help. 3 He carried with him in his laptop bag a
Walther PP .22 caliber handgun, which he claims was unloaded as he entered the station. 4
Despite carrying a concealed weapon on his road trip, Plaintiff did not have a concealed carry
permit in Utah nor in any other state. 5 He felt afraid, his heart .racing as he entered the station, but
he brought the gun "on purpose" to surrender it to law enforcement while he sought medical
help. 6 When told by office staff to wait in the lobby, he did so, sitting on a couch with the gun
and its ejected loaded magazine at his side. 7
B. Officers Are Called to the Station
Soon after, police dispatch issued a radio call: "Man with a gun. 2186 Lincoln [the police
station's address] .... [M]ale dressed in all blue waiting downstairs. Had a small gun with him.
Took the magazine out and took the bullets out. ... " 8 Officers Travis Williams, Cody Marsh,
and Zachary Martin responded. 9 When asked about the call in their depositions, each officer only
remembered hearing there was "man with a gun" at the police station and nothing about the
ejected magazine or bullets. 10 Officers Williams and Martin, who were in a back office at the
police station, arrived first while Officer Marsh, who was patrolling nearby, arrived soon after. 11
Id. at 66:19-25, 67:1-3.
at 53:17-19, 54:2-4,15-25.
5 Id. at 67:4-8, 72:12-16.
Id. at 59: 1-2, 63 :6-12, 67 :20-23. Plaintiff argues to justify his actions by stretching the application of Utah's
Firearm Safe Harbor law. The law allows a cohabitant of a residence with a firearm to surrender the firearm to law
enforcement if another cohabitant is an immediate threat to himself or others. Utah Code Ann. §53-5c-201. By its
plain language, the law does not apply to self-surrender situations; thus, it does not apply in this case and will not be
addressed further in this opinion.
Torbett Dep. 69: 13-22, 77:8-25, 78:1-4; Dep. of Zackary Martin 28:8-9; Dep. of Travis Williams 34:1-4.
8 Defs.' Reply Br. Ex. A: 911 and Dispatch Calls.
Dep. of Cody Marsh 28:18-21; Martin Dep. 25:2-13; Williams Dep. 30:5-9.
Marsh Dep. 30:1-9; Martin Dep. 26:16-21; Williams Dep. 30:14-19.
11 Defs.' Reply Br. 7, ECF No. 58; see Marsh Dep. 28:18-24; Martin Dep. 27:25, 28:4; Williams Dep. 31:20-25.
Case 1:16-cv-00044-BSJ Document 65 Filed 10/11/18 Page 4 of 14
C. Officers Attempt to Investigate
Officer Williams approached Plaintiff seated on the couch and quickly recovered the gun
lying next to him. 12 The officers then asked Plaintiff questions about who he was, where he had
come from, and why he was there. 13 Plaintiff indicated he had been shot at and was "rambling"
about "somebody following him while looking out the window like he's being followed." 14 He
indicated he might have food poisoning, but the officers' understanding was that he was simply
"poisoned." 15 Plaintiff testified that, during his time in the station, he continued to feel ill, like he
was "fading in and out of consciousness." 16 He further testified the officers must have thought he
was on drugs. 17
Plaintiff requested medical care, and approximately three-and-a-half minutes into the
seven-minute interaction, medical services located in the same building were called. 18
The officers also asked several questions about Plaintiffs gun. 19 Sometime during the
interaction, when Officer Martin told Plaintiff that he needed a permit to carry a concealed
firearm, Plaintiff responded, "You are a fucking dumbass."20 Although Plaintiff contends he was
"courteous" and "spoke in low tones," he does not deny using the choice epithet. 21
Williams Dep. 33:13-20.
Torbett Dep. 78:25, 79:1-5; Marsh Dep. 33:14-23; Martin Dep. 29:9-22; Williams Dep. 34:5-6,
Defs.' Reply Br. 7, ECF No. 58; see Marsh Dep. 32:14-23; Martin Dep. 29:17-18. Plaintiff argues he did not
make these statements yet does not cite to counterproofin the record. Pl.'s Opp'n Br. 10, ECF No. 52. In fact, he
does not so much as provide an affidavit with a denial. Since Plaintiff's version of the facts are unsupported in the
record as required by Rule 56(c) and the Tenth Circuit, the court considers the fact "undisputed for the purposes of
the motion." Fed.R.Civ.P. 56(e)(2); see A.M. v. Holmes, 830 F.3d at 1136.
Defs.' Reply Br. 7, ECF No. 58; see Torbett Dep. 84:7-12; Marsh Dep. 32:14-23; Martin Dep. 34:23-25, 35: 1-4;
Williams Dep. 33:7-9.
Torbett Dep. 82:21-24.
Id. at 98:4-5.
Defs.' Reply Br. 7, ECF No. 58; see Williams Dep. 31:3-12, 34: 1--4.
Torbett Dep. 83:5-12.
Martin Dep. 28:18-22, 29:1-5.
Torbett Dep. 155:4-5; Pl.'s Opp'n Br. 11, ECF No. 52.
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D. Plaintiff Attempts to Leave the Station
During the interaction, Plaintiff attempted to leave the station several times. 22 First, he
attempted to leave by standing up from the couch. 23 Because the officers were still investigating
and aid was on its way, he was told "not [to stand] just yet." 24 Plaintiff then threatened to knock
out Officer Williams. 25 Plaintiff again attempted to leave. 26 As he stood up and started walking
toward the exit, the officers were concerned for Plaintiffs and the public's safety: that Plaintiff
would leave before medical assistance arrived; that Plaintiff, who entered the police station with
a gun, might have another gun in his car nearby; and, since Plaintiff had indicated he was shot at
and being followed, that the shooter was at large and looking for him. 27 In short, he was a danger
to himself and others. 28
E. Plaintiff Resists Attempts to Detain Him
The accounts of what exactly happened next differ, 29 but even with the facts viewed in
the light most favorable to Plaintiff, it is clear Officer Williams attempted to restrain Plaintiff
from leaving and that Plaintiff did not comply. In the process, a bottle in Plaintiffs hand
splashed water on Officer Martin's face. 30 Officer Marsh then grabbed Plaintiffs arms or hands,
Defs.' Reply Br. 8, ECF No. 58.
TorbettDep. 84:19-25, 85:1, 5-10.
Torbett Dep. 86:7-11; Marsh Dep. 35:10-15.
Williams Dep. 34:5-9. Plaintiff argues he never made this threat, but he does not cite to nor provide counterproof
in the record. Pl.'s Opp'n Br. 7, ECF No. 52. Since Plaintiffs version of the fact is unsupported in the record, the
court considers the fact undisputed under Rule 56(e)(2).
Torbett Dep. 86:18-23.
Defs.' Reply Br. 8, ECF No. 58; see Williams Dep. 53:16-25, 54:1-14; Martin Dep. 46:1-15.
Defs.' Reply Br. 8, ECF No. 58; see Williams Dep. 53:16-24; Martin Dep. 46:9-12.
Defendants claim Officer Williams put out his arm, which Plaintiff"knocked away." Williams Dep. 35:16-18.
Plaintiff claims Officer Williams grabbed Plaintiff's arm, which he "pulled,'' "turned,'' and "twisted" away to avoid
a painful hold. Torbett Dep. 88:12-14, 89:6-14.
MarshDep. 34:16-19; Martin Dep. 29:13-17; Williams Dep. 34:24-25, 35:1-2. Plaintiff attempts to dispute this
fact by noting he was "shocked" at the allegation. Pl. 's Opp'n Br. 13, ECF No. 52. However, he does not cite nor
produce contrary evidence to dispute whether water in fact splashed on an officer's face. Since the dispute is not
genuine under Rule 56( c), the fact is considered undisputed under Rule 56(e)(2). See Matsushita Elec. Indus. Co.,
475 U.S. 574, 587 (1986) (noting Rule 56 requires an opponent to articulate "specific facts showing that there is a
genuine issue for trial.") (emphasis in original).
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attempting to place him in handcuffs. 31 At that time, although the officers did not tell Plaintiff
that he was under arrest, the officers believed they had probable cause to arrest him for
disorderly conduct, resisting an-est, and carrying a concealed firearm. 32 Officer Williams, who by
then had Plaintiff in a bear hug hold, decided to take Plaintiff to the ground. 33 Plaintiff landed on
his left hip. 34 As soon as he was taken down, medical assistance arrived. 35
F. Events After the Incident
After he was rushed to the hospital, Plaintiff was treated for several conditions. He was
diagnosed with diabetic ketoacidosis, a serious condition resulting from a lack of insulin. 36 He
also received treatment for a "left subtrocanteric femur fracture." 37 Lastly, because Plaintiff
presented paranoia and delirium, his treating physicians consulted the hospital's psychiatry
service, which concluded that the "paranoia was secondary to delirium from his acute illness, i.e.
diabetic ketoacidosis." 38 Before discharge, Plaintiffs mental status returned to baseline. 39
Plaintiff alleges his injured femur was a result of Officer Williams' s takedown
maneuver. 40 Since bringing this case, Plaintiff has not designated any retained medical experts,
only a use-of-force expert. 41 This expert concedes in his report that (1) "the officers had
reasonable suspicion to conduct an investigation" and, in the course of their investigation, (2)
"the officers were attempting to de-escalate the situation."42
MarshDep. 35:20-25, 36:1-6.
Defs.' Reply Br. 8, ECF No. 58; see Marsh Dep. 56:10-14.
Williams Dep. 34:21-25, 35:1-15; Marsh Dep. 36: 13-17.
34 Torbett Dep. 93:15-23.
Williams Dep. 35 :20-21; Martin Dep. 30: 1-6.
Pl.'s Opp'nBr. Ex. 5: Medical Report, Ex. 6: Discharge Summ, ECF No. 52.
38 Pl. 's Opp'n Br., Ex. 6: Disch. Summ., ECF .No. 52.
40 Pl.'s Am. Compl. 4, ECF No. 21.
Pl.'s Discl. Expert Test. 1-2.
Defs.' Reply Br. 9, ECF No. 58; see Hergert Dep. 20:7-25, 72:1-12.
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As grounds for summary judgment, Defendants raise the defense of qualified immunity.
The doctrine of qualified immunity is "designed to protect public officials who act in good faith,
on the basis of objectively reasonable understandings of the law at the time of their actions."
Pierce v. Gilchrist, 359 F.3d 1279, 1299 (10th Cir. 2004). The defense protects "all but the
plainly incompetent or those who knowingly violate the law." Gross v. Pirtle, 245 F.3d 1151,
1155 (10th Cir. 2001). The court carefully considers qualified immunity claims because, if
successful, it is an "immuniry from suit, rather than a mere defense to liability," but the claim is
"effectively lost if a case is erroneously permitted to go to trial." See Mitchell v. Forsyth, 472
U.S. 511, 526 (1985) (emphasis in original). Likewise, "the Supreme Court has repeatedly
'stressed the importance of resolving immunity questions at the earliest possible stage in
litigation."' Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995) (quoting Hunter v.
Bryant, 502 U.S. 224, 227 (1991)); see Mecham v. Frazier, 500 F.3d 1200, 1204 (10th Cir.
When qualified immunity is raised, the burden shifts to the plaintiff to show that the
defendant (1) violated the plaintiffs constitutional right and (2) that right was clearly established
when the violation occurred. Pearson v. Callahan, 555 U.S. 223, 231 (2009). The court may address
the two prongs in either order, id. at 236, but "ifthe plaintiff fails to establish either prong,'' then
"the defendant prevails on the defense." A.M v. Holmes, 830 F.3d at 1134-35.
A. Violation of a Constitutional Right
Plaintiff alleges that Officers Williams and Marsh used excessive force, in violation of his
Fourth Amendment rights. An excessive force claim is analyzed under Graham v. Connor's
objective reasonableness standard. 490 U.S. 386, 395 (1989); see also Cry. ofLos Angeles, Calif.
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v. Mendez, 137 S. Ct. 1539, 1547 (2017) ("If there is.no excessive force claim under Graham,
there is no excessive force claim at all."). Graham requires courts to give "careful attention to the
facts and circumstances of each particular case," including the (1) the severity of the plaintiffs
crime(s), (2) the level of threat the plaintiff posed to the officers and others, and (3) the plaintiffs
efforts to resist or evade arrest. Id. at 396. The reasonableness of force is viewed "from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight."
Id. That perspective includes the information possessed by the officers on the scene. Anderson v.
Creighton, 483 U.S. 635, 641 (1987).
For courts reviewing excessive force claims at the summary judgment stage, if there
remain no genuine issues of material fact, the reasonableness of the officer's actions presents "a
pure question oflaw." Scott, 550 U.S. at 381 n.8; accord Mecham, 500 F.3d at 1203 ("[T]he
question of objective reasonableness is not for the jury to decide where the facts are
uncontroverted. ") (emphasis omitted). As two Defendants remain in this case, Officers Williams
and Marsh, a question remains as to whether they used excessive force.
1. Threat Posed to the Officers and Others
The court begins its objective reasonableness analysis with "undoubtedly the most
important" Graham factor, the threat posed to officers and others. Pauly v. White, 874 F.3d 1197,
1216 (10th Cir. 2017). Here, as to the officer's safety, the gun did not pose a threat because it was
unloaded at all times and recovered at the encounter' s outset. 43 Rather, any threat to the officers
arose from Plaintiffs strange and aggressive behavior in a place prized as the pinnacle of public
Defendants rely on United States v. Windom, 863 F.3d 1322 (10th Cir. 2017), as an instructive case on the
reasonableness of force when officers are investigating a crime involving a firearm. However, Windom is
inapplicable. Unlike in Windom, where the officers' safety concern arose from a loaded gun still in play, here
Plaintiffs gun was unloaded and recovered immediately by Officer Williams. Furthermore, Plaintiff never asked for
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safety, a police station: Plaintiff appeared paranoid, threatened to knock out Officer Williams,
swore at Officer Martin, splashed water on Officer Martin, and physically resisted Officer
Williams' s attempt to detain him.
Plaintiff posed an even greater threat to others-specifically, himself and the public-if
allowed to leave. First, Plaintiff was, as he put it, "fading in and out of consciousness."44 Aid was
on the way. The officers sought to restrain and detain Plaintiff in the lobby so medical services,
located in the same building, could treat him as soon as they arrived. Second, if Plaintiff were
allowed to leave, the officers would have been unable to complete their investigation into
whether Plaintiff carried a concealed weapon into the police station, whether he had another in
his car, and whether there was a shooter at large and looking for him.
When faced with safety threats, officers may protect themselves in certain circumstances
by "drawing their weapons, placing a suspect in handcuffs, or forcing a suspect to the ground."
Novitsky v. City ofAurora, 491 F.3d 1244, 1254 (10th Cir. 2007). The court finds this as one
such circumstance where an arm hold in preparation for handcuffing and a takedown maneuver
were objectively reasonable. Defendants refer to Gallegos v. City of Colorado Springs, and the
court finds the case on point. 114 F.3d 1024 (10th Cir. 1997). In Gallegos, officers were
investigating an uncertain situation, a domestic disturbance, and encountered the suspect acting
strangely, talking loudly with his hands over his face, and appearing intoxicated. While
attempting to investigate, an officer grabbed the suspect's arm as he walked away. The suspect
pulled away twice, saying "leave me the fuck alone," and walked on. Id. at 1026. With probable
cause to arrest the suspect for interfering with an investigation, the officer grabbed the suspect's
shoulder. Fists clenched, the suspect spun toward the officers and assumed a wrestler's position.
Torbett Dep. 82:23-24.
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One officer then used an "arm bar maneuver" and the other a "take-down" to effectuate the
arrest. Id. The Tenth Circuit affinned that the officers' force was reasonable to secure their safety
given the suspect's "strange and aggressive conduct." Id. at 1031. So too here, officers were
investigating an uncertain situation and Plaintiff exhibited strange and aggressive behavior
reasonably justifying an arm hold and takedown to control the escalating threat to themselves
and others. See Graham, 490 U.S. at 396-97 ("The calculus ofreasonableness must embody
allowance for the fact that police officers are often forced to make split-second judgments-in
circumstances that are tense, uncertain, and rapidly evolving .... ").
Admittedly Plaintiff's behavior could have been less intentional and more innocuous than
it appears. The water splash may have been accidental; the shifting during Officer Williams's
arm hold may have been to find a more comfortable position. But even if the officers
misinterpreted Plaintiff's water splashing and ann shifting to be threats, they reasonably did so,
especially when those behaviors were coupled with a knock-out threat and epithet. Thus,
consistent with the Tenth Circuit, Officers Williams and Marsh were entitled to use the force
apparently necessary, even if not actually necessary, to subdue the threat. See Cavanaugh v.
Woods Cross City, 718 F.3d 1244, 1249 (10th Cir. 2013) ("An officer who has a reasonable but
mistaken belief about a suspect' s dangerousness may nevertheless be justified in using more
force than is necessary.") (citing Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1314 (10th Cir.
2009)); accord YoubyoungParkv. Gaitan, 680 Fed. App'x 724, 739 (10th Cir. 2017) (affirming
district court's finding ofreasonable force when officers reasonably, although perhaps
mistakenly, interpreted a suspect's resistance as fighting back, justifying a knee strike and
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2. Plaintiff's Efforts to Resist or Evade Arrest
The objective reasonableness of the officers' force was further reinforced by Plaintiffs
efforts to resist or evade arrest. 45 First, he disobeyed a lawful order "not [to stand] just yet" 46
while police were still investigating the situation. In Utah, there is no right to physically resist a
police order as long as the officers are within the scope of their authority. See State v. Trane, 57
P .3d 1052, 1061 (Utah 2002)). Plaintiff concedes through his use-of-force expert that, given the
circumstances, "the officers had reasonable suspicion to conduct an investigation."47 Having
reasonable suspicion, the officers were thus within their scope of authority when they ordered
Plaintiff to stay seated. Yet despite the lawful order, Plaintiff got up and again attempted to leave
the station. A reasonable officer could construe Plaintiffs disobedience as resistance. See Estate
ofLarsen ex rel. Sturdivan v. Murr, 511F.3d1255, 1260 (10th Cir. 2008) (emphasizing a
suspect's refusal to cooperate is an important factor in finding the officer's use of force
reasonable). But see Fisher v. Ciry ofLas Cruces, 584 F.3d 888, 896 (10th Cir. 2009) (holding
the suspect's "generally cooperative" behavior suggested he was not resisting arrest, making
officers' use of force unreasonable).
Second, by Plaintiffs account, he "pulled," "twisted," and "turned" his ann away from
Officer Williams, who had grabbed Plaintiff's arm as he walked toward the exit. 48 Although
Plaintiff says this was to avoid a painful hold, the officers reasonably perceived it as continued
resistance under the circumstances, especially when Plaintiff appeared paranoid and delirious as
well as at times aggressive and noncompliant. See Bryner v. Salt Lake Cry., No. 2:06 CV 377,
The objective reasonableness standard is used for any "claim that law enforcement officials used excessive force
in the course of making an arrest, investigatory stop, or other 'seizure' of an individual." Graham, 490 U.S. at 388.
Thus, regardless of whether Plaintiff was merely stopped or formally arrested, the inquiry is the same.
46 Torbett Dep. 86:7-22.
47 Hergert Dep. 20:7-25.
48 Torbett Dep. 88:12-14, 89:6-14.
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2009 WL 2058717, at *5 (D. Utah July 13, 2009) (finding a reasonable officer could have
believed suspect shifting to a less painful position during a hold was actively resisting, especially
when the suspect was apparently intoxicated, dangerous, and repeatedly noncompliant with
officers' orders). 49
Plaintiff argues he was not resisting or evading arrest because he was never told that he
was under arrest. This argument misunderstands Fourth Amendment jurisprudence. The Fourth
Amendment "does not require officers to tell a suspect the grounds for his arrest or even to
expressly state that he is under arrest; rather, it requires that officers have probable cause before
making an arrest." Rudd v. Graves, 22 Fed. App'x 954, 956 (10th Cir. 2001) (collecting cases).
Once Plaintiff began pulling away from Officer Williams's ann hold, the officers believed they
had probable cause to arrest him for disorderly conduct (for displaying his weapon at a police
station, swearing at an officer and threatening another); resisting arrest, also known as interfering
with a peace officer (for disobeying a lawful command to stay seated); and carrying a concealed
firearm (for bringing a gun and loaded magazine into the police station in a laptop bag without a
concealed carry permit). Even without actual probable cause, the officers are nevertheless
entitled to qualified immunity if they "had an objectively reasonable basis for believing that the
facts and circumstances surrounding the arrest were sufficient to establish probable cause."
Hedgpeth v. Rahim, 893 F.3d 802, 807 (D.C. Cir. 2018) (citing Wardlaw v. Pickett, 1F.3d1297,
1304 (D.C. Cir. 1993)); see Malley v. Briggs, 475 U.S. 335, 339 (1986). The court finds that,
Plaintiff relies on Casey v. City ofFederal Heights, 509 F.3d 1278 (10th Cir. 2007), to support his proposition
that shifting to avoid pain is not resisting. However, Casey is distinguishable. The plaintiff in Casey, who also
shifted to avoid a "painful arm-lock," was fully compliant with officer orders and not fleeing the scene; rather, he
was returning to it, making himself"easier to capture, not harder." Id. at 1280, 1282. In contrast, Plaintiff was not
compliant with the order to stay seated and was attempting to walk away from the officers and the station, making
his capture harder.
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given the information available to the officers at the time, the officers reasonably believed they
had probable cause to arrest Plaintiff for at least one violation, if not all three, and :reasonably
applied force to effectuate the arrest. Graham, 490 U.S. at 396 ("Our Fourth Amendment
jurisprndence has long :recognized that the right to make an arrest ... necessarily carries with it
the right to use some degree of physical coercion or threat thereof to effect it.").
3. Severity of the Plaintiff's Crimes
Since all three of Plaintiffs alleged crimes were misdemeanors or less, 50 this factor
initially seems to part from the other two and favor Plaintiff. However, where these crimes
occurred is probative, drawing this factor back to Defendants' favor. The crimes occurred in a
police station. Yet in this public safe haven, Plaintiff was threatening and swearing at officers,
resisting their commands and restraints, and had a gun with him and a loaded magazine. Other
courts have concluded strikes and takedown maneuvers were reasonable t() subdue strange and
aggressive conduct in police stations. 51 The court here likewise finds the arm holds and takedown
maneuver were :reasonable under the circumstances.
Plaintiffs injury was serious and regrettable. But the court is mindful that the Fourth
Amendment "does not require [police] to use the least intrnsive means in the course of a
so In Utah, disorderly conduct is a Class C misdemeanor or an infraction, based on the circumstances. Utah Code
Ann. § 76-9-102. Resisting arrest-otherwise known as interference with a police officer-is a Class B
misdemeanor. Utah Code Ann. §76-8-305. Carrying a concealed firearm is a Class B misdemeanor for an unloaded
weapon, Class A ifloaded. Utah Code Ann. §76-10-504.
See Bennett v. Britton, 609 Fed. App'x. 11 (2d Cir. 2015) (holding an officer's knee strike, which caused a
fractured femur, was reasonable when the plaintiff menacingly swung his belt at the officer in a police station);
Schliewe v. Toro, 138 F. App'x 715 (6th Cir. 2005) (affirming summary judgment grant for defendants, reasoning
that the officers use of force--a punch in the face, two kicks in the back, and a wrestle to the ground-was
reasonable given arrestee behaved erratically, appeared intoxicated, splattered blood on an officer, called another a
"bitch," and attempted to flee detention at the police station); Koeiman v. City ofNew York, 829 N.Y.S.2d 24 (2007)
(reversing jury finding for the plaintiff as to excessive force where an intoxicated individual entered a police station,
assaulted an officer without provocation or justification, and resisted officer's efforts to restrain him, resulting in a '
takedown maneuver that caused a fractured femur). But see Eberle v. City ofNewton, 289 F. Supp. 2d 1269, 1279
(D. Kan. 2003) (denying qualified immunity due to excessive force used on a suspect interrogated at a police station
who was not fleeing nor dangerous yet she was thrown to the ground and kicked while down).
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detention, only reasonable ones." United States v. Melendez-Garcia, 28 F.3d 1046, 1052 (10th
Cir. 1994)). And "[n]ot every push or shove, even if it may later seem unnecessary in the peace
of a judge's chambers, violates the Fourth Amendment." Graham, 490 U.S. at 396 (citation and
quotation marks omitted). For reasons stated above, the officers use of force, while unfortunate,
did not violate a Fourth Amendment right. 52 Officers Williams and Marsh are entitled to
B. Clearly Established Right
Having so decided, it is unnecessary to address Defendants' second assertion.
For the reasons stated above, it is hereby ORDERED that Defendants Motion for
Summary Judgment (doc. 42) is GRANTED as to Officers Williams and Marsh. As a result,
Plaintiffs Motion in Limine (doc. 44) is moot. All claims against Defendants are DISMISSED
and this action is DISMISSED.
Dated this j/_ day of October, 2018.
Plaintiff also alleges violations under the Second, Fifth, and Fourteenth Amendments. PL 's Am. Compl. 5-6, ECF
No. 21. However, these violations go largely unaddressed and entirely unsupported in Plaintiff's opposition brief.
Pl.'s Opp'n Br. 23-24, ECF No. 52. Because the court will not undertake counsel's duty ofresearch and argument,
these alleged violations will not be addressed in this opinion.
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